American Paradox

Why DRM is crap

2007-11-07T19:07:00.001-05:00

See http://www.boingboing.net/2007/11/07/mlb-rips-off-fans-wh.html

This is precisely what I fear with DRM technologies. You don't ever have a property interest in what you are buying. Plus, you can never be certain how much you are benefiting the actual "owner" of intellectual property when you purchase DRM-addled media from a conglomerate. It's not clear to me that these technologies have any use other than polluting the market with low-quality, hard-to-use, hard-to-transfer media that is not cost-justified.

That's all.

More Socialism, really?

2007-09-09T08:37:00.000-05:00

"What a new progressive movement needs can be simply stated: more socialism."

Sadly, this article about the problems of Progressive politics could have been really good. Instead, it castigated democratic capitalism (the predominant Anglo-American form of government) as not socialist enough. What the article failed to note was that by saying such, it was really saying that democratic capitalism was not controlling enough.

Let's take the characterizations the author (Ronald Aronson, whoever he is) makes about what he variously terms "individualism" or "capitalism." Aronson says that "unequal schools, the rising costs of higher education, the growing gap in living conditions between well-off and poor, the abolition of the estate tax encouraging a plutocracy--all heighten the system's unfairness." These specific complaints about our capitalist democracy are grossly misplaced -- Aronson would be better off complaining about health care quality and access, or perhaps the Iraq war. But on these grounds he has little to stand on.

School Inequality: We currently have a massive public school system, with a mandate from the Supreme Court to integrate (albeit flagging in its potency, see e.g. the recent desegregation decisions in Seattle and Kentucky), and a huge investment by local communities (based on property taxes, mostly) and states to sustaining equal public access to education. What we also have is a flawed "opt-out" system for parents wishing to place their children in private or religious alternative schools for the betterment of their children. These alternative schools can generally only be afforded by the upper-middle and upper-class. Why is this? The left wing is insistent that everyone attend public schools, and that no state money go towards any alternative schools. They maintain this despite the fact that government-run schools are precisely the weakest schools in the nation, as well as some of the strongest. The problem is that it is hit or miss. You can live in a place with excellent public schools (suburban Minneapolis-Saint Paul) or you can live in a place with terrible public schools (examples abound, but inner city Minneapolis is an example I am familiar with).

So what is the private, capitalist solution to this problem? Make vouchers available for the poor and working class, to send their children to public schools (who would then get the money) or alternative private/religious options of the parents' choice. This is an option based on enabling the freedom of educational choice for the lower classes -- and it is opposed in a knee-jerk fashion by the left. Why? It undermines the left's insistence that everyone go to public schools, and that the only solution to the failure of the public schools in many rural and inner city areas is to pour more money into those failing programs, as though money itself will save the day. So I'm not sure what is "progressive" about Aronson's implied assault on school choice proposals other than the huge "progressive" taxes that would be needed to support more "equal" schools.

Rising cost of higher education: This is spurred by excessive government subsidization of student loans, as well as the foolish insistence of the left that "everyone should go to college." Nothing could be further from the truth: there are many people I know who should not have gone to college, because their career goals will only be held back four years by attending, because their careers do not require college degrees, or because they wish to be entrepreneurs and college is a waste of investment. Thus, the artificially higher demand for schools, combined with the artificially high amount of loan support for students of lesser means (which may be a good egalitarian policy with a flawed execution) means that colleges are free to raise tuition at will. Higher demand = higher aggregate price in the market for higher education. Simple economics predicts this, ceteris paribus. It's unclear how Aronson's socialist policies would change this system, except to encourage price ceilings on higher education, with disastrous results (rationing, lower wages for professors, leading to supply problems).

Gap between rich and poor, growing: I used to think the existence of a wider "gap" itself was a bad thing. Then I asked myself, "Why?" It turns out that everything I worry about regarding such a gap has to do with how the poor are doing, not with the existence of the gap itself. There can be a gigantic gap between trillionaires and those without jobs, but if in that hypothetical society the unemployed and working poor are still doing quite well, then who cares? So the point is empowering the poor's earning potential and making sure consumer goods are cheap for them to purchase, not in worrying about some "gap." And as capitalist democrats would point out, a freer market gradually lowers the price of basic commodities (see: Wal-Mart, Target, CostCo, et al.) for everyone, including the poor. Individualist policies also promote the poor by lowering taxes to negative values (the EITC, for example), and preventing price floors from artificially lowering the aggregate demand in the labor market (not adopting "living wage" programs, for example). So, absent some evidence that these denigrated "market-based" or "individualist" solutions actually make the poor worse off, I don't see what Aronson is getting at.

The Estate Tax: This is a restraint on the transfer of investments across generations. Basically, Aronson wants government control of inheritance, letting elected politicians decide who is "too rich" to pass on his full wealth to his children. In contrast, individualists claim personal freedom as the source of appropriate policy in this area: individualists of any wealth should be able to pass on their wealth. It's a social choice, between freedom and control-based-on-envy. Hard to make, but there is no presumption in favor of control. I'm not sure Aronson actually wants to put this argument to the American people, most of whom do not subscribe to the "wealth should be punished" philosophy of leveling.

Conclusions: I'm not sure the specific "socialist" controls on economic and social choice that Aronson favors would make people better-off. It seems to me that what he is opposing in all these areas is wealth-generating freedom of choice, in favor of top-down control of people's decision making made by expert bureaucrats and politicians. In fact, that is precisely the problem with full-blown and even marginal socialist efforts. Real democracy usually rejects such efforts over time when they are proven failures.

The Drug Vote

2007-07-04T19:10:00.001-05:00

"...Tell Bill Clinton to go and inhale" - Cypress Hill, "I Want to Get High"

Given the widespread dissatisfaction with our Nation's drug laws, you would think that some intrepid news organization would be trying to find out which of the candidates for President in 2008 will be receiving the "drug vote." But alas, no one will cover this area because it is simply too controversial for the middle-aged white suburban housewife -- the target audience of evening news programs. Apparently these are the only people on the planet who still believe that a minimum of 15 years in prison is proportionate to the offense of selling two ounces of marijuana, a substance without a meaningful LD-50.

How widespread is the dissatisfaction with drug laws? Why are people dissatisfied? According to Citizens Against Prohibition, there are at least 40 million Americans who believe that drug prohibition is the wrong policy for America. This might be because even the conservative, Government propaganda-oriented agencies that track usage information estimate that 20% of Adults between 20 and 59 have tried Cocaine "or other street drugs" during their lifetime. In other words, of those people who have tried illicit drugs of any type (a lot of Americans), a large majority of them probably do not view the consequences of their drug use as exceeding the costs of proscribing it. But even so, there are plenty of people who have never used illicit drugs who believe that prohibition is a losing strategy for American public policy.

People who know virtually anything about the effects of the great Drug War in this country also tend to be in favor of its ceasing immediately, or at least fading away into a drug abuse treatment regime, not a criminalization regime. There are probably four reasons for this that I can think of, of the top of my head (though research would certainly disclose more):

The high levels of enforcement in drug interdiction at our borders has the undisputed economic effect of increasing the cost of drugs due to artifical scarcity (lower market supply --> higher market prices), which means higher profits for drug sellers, higher levels of crime by users to attain the funds necessary for now-high cost drugs, and more violent conflicts with law enforcement.
Drug prohibition has the same effect as alcohol prohibition for so-called "minors" under the Age of 21, leading to secretive use (to avoid detection by zealous law enforcement agents) and avoidance of treatment for complications and addiction, as well as making illicit drug use "cool" among Teenagers and college students, simply because it is forbidden.
The distinction between abuse of legal drugs (alcohol) and illegal drugs (marijuana, primarily) is very hard to make medically, and there is significant evidence that drugs such as marijuana are far less physically addictive than alcohol, and have less deleterious effects on the development of liver disease or cancer.
Drug enforcement is statistically very racist, with higher penalties for drugs that African-Americans more commonly use (e.g., crack cocaine) than for drugs that rich, white investment bankers typically use (e.g., powdered cocaine), differences that have never been rationally explained by anyone in law enforcement or the legislature.

Who gets the "Drug Vote"? Which major candidate, then, should an advocate of repealing prohibition favor? Analysis is hard, particularly since both the mainstream parties in the United States (Democratic and Republican) are firmly in favor of drug prohibition and the waste of billions of federal tax dollars on creating a crime-ridden distorted market for substances the American people want and will always want. But here are some thoughts on the major candidates for office in 2008:

Hillary Clinton: Probably in favor of the status quo, given her husband's strong support of the Drug War, and no indications that she would do anything to upset her attempt at courting the "moderate" American housewife for her electoral strategy.
Barack Obama: More likely than most candidates to feel some sympathy for the facts. Having worked as a lawyer and also being African-American, Obama has probably seen the horrible effect of federal drug policy on inner-city Black America, and can also appreciate the economic nonsense that is the Drug War. He has also admitted to smoking Marijuana in his autobiographical book, "Dreams of My Father." However, these speculations are easily countered by the fact that little is known of Obama's positions except that they are always moderate and centrist, which would tend to support continuation of a vigorous form of prohibition.
John Edwards: Because Edwards has always declared positions that are socially moderate but economically fairly letist, it is hard to tell where he falls on the drug war. For instance, he says he is "not quite there yet" in response to his wife's support for civil unions between homosexuals. It's not entirely clear what that means, but before one is ready to roll-up the Drug War, one probably would be ready first to support civil unions, which have majority support in the country and are on the upswing in any event. However, he has received some plaudits from drug legalization groups for his positions on drug legislation, has voted against increased penalties for drug dealers, and has admitted to using drugs in the past. Edwards has also directly addressed the disparity between crack-powder drug sentencing in this country, something few politicians have addressed. On the other hand, he did very little in the Senate to move towards an end to prohibition.
Rudy Giuliani: Undoubtedly a hard-liner against the drug war. In any case, he has to be, since his other stances on social issues are far too liberal for the conservative base (hints of pro-choice and pro-gay-rights).
Mitt Romney: Unclear, but again the fact is that no Republican can be elected and stay alive very long with supporting a full-on war against drugs. It just won't happen in this country.
John McCain: Track record of supporting pro-drug war legislation. Pretty clear on this point. Wants to increase penalties -- however that would be possible? -- for selling drugs.

So who gets the drug vote? I would say either Obama or Edwards, at this point. There is no sure-fire way to tell, but only those two show any inkling of a possible interest in reconfiguring inane government expenditures that lead to far more problems than they solve.

Senator Brownback and Evolution

2007-06-04T22:59:00.000-05:00

Senator Brownback has written a defense of his decision to raise his hand at the recent Republican candidates debate when the question was asked, Who among you does not believe in the theory of evolution?

Good news, on the one hand. We always want the most fringe beliefs to stand out so they can be defeated by reasoned democracy. But let's break down Brownback's N.Y. Times column:

"IN our sound-bite political culture, it is unrealistic to expect that every complicated issue will be addressed with the nuance or subtlety it deserves."

So he's learned from the George Will school of political journalism, Technique #1: Always begin a column with a platitude no one will disagree with. Then proceed with the crazy.

"The premise behind the question seems to be that if one does not unhesitatingly assert belief in evolution, then one must necessarily believe that God created the world and everything in it in six 24-hour days."

That's a fair point, but let's be honest about what we're talking about: People who reject Evolution almost invariably do because of religious convictions about creation. Why dodge the scary truth that you disagree with science because it scares you, Brownback?

"I believe wholeheartedly that there cannot be any contradiction between the two [faith and reason]."

This is mind-boggingly stupid. I might say that I believe that Loki is guiding President Bush in his war-making efforts. But the fact is, reason tells me there is NO EMPIRICAL EVIDENCE that Loki is guiding anyone's actions, or that Loki exists. An act of "faith" would be believing in Loki, let alone praying to him, despite the evidence or in the face of a lack of evidence (Note: it is not clear that any Norsemen ever prayed to Loki either, but this is a moot point). Isn't ignoring empirical evidence or a lack thereof per se unreasonable?

"More than that, faith — not science — can help us understand the breadth of human suffering or the depth of human love."

Actually, science has made a lot of strides towards understanding human love (as mediated by a series of chemicals that mostly have to do with the overriding urge for us to get laid, repeatedly) and human suffering (you could say the entire field of psychiatry is devoted to understanding human suffering scientifically).

"If, on the other hand, it means assenting to an exclusively materialistic, deterministic vision of the world that holds no place for a guiding intelligence, then I reject it. "

Most "believers" in evolution are perfectly content to think it is possible for a deist God to have created the singularity that began the universe, defined scientific laws, and then pressed the green "GO" button, while he stepped back and watched the supernovae. Brownback clearly has never spoken to a scientist who believes in evolution so that he would understand this subtlety. Wait a second -- I thought the whole point of this column was to delve into subtleties?!?

"Yet I believe, as do many biologists and people of faith, that the process of creation — and indeed life today — is sustained by the hand of God in a manner known fully only to him."

Seriously? "[K]nown fully only to him"? First of all, that's unproveable and not the subject of science. Macroevolution at least CAN be proved, though we don't have the instruments or the record for it at the present time, but discovering truths knowable only to some divine being who gives no evidence of his presence in this universe is very different. Where is this "hand of God" and why does it demand to be capitalized?

"I am wary of any theory that seeks to undermine man’s essential dignity and unique and intended place in the cosmos."

At least he tacitly admits that he rejects scientific theories because he has a predisposition to rejecting anything that conflicts with his faith. Too bad it's the wrong answer.

"While no stone should be left unturned in seeking to discover the nature of man’s origins, we can say with conviction that we know with certainty at least part of the outcome. Man was not an accident and reflects an image and likeness unique in the created order."

Reading this column is like watching a train wreck in slow motion. It's gratingly unpleasant, just like nails on a chalkboard -- the slower you read and the more you digest, the more you want to vomit. And it builds to this crescendo, where Brownback states with self-certainty that man was "not an accident." God, who allegedly endowed him with his penetrating insight and ability to reason, is laughing maniacally right now. Of course that is because the one true God is Loki, and anyone who disagrees clearly does not understand when science fails the human mind.

But seriously, who among us wants to believe that humans are purposeless beings, "accidents"? There is probably no psychological or material benefit to believing this unless... the evidence you have points to its being true. This is to say that scientists who believe that humanity has no purpose and was not created, probably did not come to that conclusion lightly or without trepidation. Whereas, believing in a Christian God-created universe makes us suspicious of bias: death is not the end of life, but a continuation thereof or perfection thereof; all moral quandaries were solved long ago and written into a perfect book by agents of God; and all questions to which there are not answers are left unanswered because God does not want us to have the answers. There you have it: no death, no moral problems, no reason to ask questions. Might we understand if some scientists, using their ability to reason, were skeptical that people who really, really want to believe these three consequences of Christian mythology might harbor biased conclusions about how the rest of the world works, especially in evaluating scientific theories that challenge their accepted memes?

The Police State Flexes...

2007-04-27T14:19:00.000-05:00

If you have ever given a damn about free speech rights, artistic license, and rational decision-making by school administrators and the police, read this story.

So apparently this student in the suburbs wrote a "disturbing" essay that involved a school shooting, a subject which coincidentally has been in the news lately. This student did not specify any intent to commit a crime such as a assaulting or killing anyone, and intended the essay to be a joke, based on the "free writing" assignment he had been given by his teacher. A joke in bad taste? Maybe. But that should not lead to an arrest!

We have to expend police resources on investigating this? The cops say that "we need to be very vigilant today when we’re dealing with school settings." Or... we could use common sense and realize that someone writing a free writing essay who doesn't have a history of impulsive, criminal, or otherwise psychiatric problems is probably not prefacing a shooting incident. The hyperreactive police can perhaps be excused for acting on their political instincts and fearing retribution from the reactionary suburban public if they did not arrest this individual. Still, what a sad day for education, free speech, and our deteriorating standards of policing.

In any event, the police state would now have us watch what we write, because if we write a story that contains violence or a messed-up protagonist, apparently we become a threat to society.

German Soccer

2007-04-07T00:24:00.000-05:00

I was sipping my gin and tonic tonight (heavy on the Bombay Sapphire, mind you) and thinking about how much I respect German soccer. See, culturally, there is some perverse tendency among English announcers (both American and British) to take sides against the Germans, whether it be in the World Cup or just Champion's League matches between German and Italian/Spanish/English squads.

What particularly irks me is that you can be sitting there, watching a match between Bayern Munchen and AC Milan this week -- a big match, mind you, between two powerhouse teams -- and the announcers are just so obviously in favor of the Italian team, Milan. I mean, the game is tight at 2-1 (Milan winning) towards the very end and the announcer is already declaring Nesta, a Milan player, the player of the match. Then BAM! Bayern scores with seconds left in stoppage time, and it is 2-2, a huge upset for Milan. Too bad the announcer barely registers the significance of this. In any event, I was pissed. This seems to always happen when you catch games with German teams playing non-German teams. What I would not give for a German announcer!

And at the World Cup this past summer, none of the big commentators expected the Germans to do very well, even though it was in Germany! Unfortunately for the lowered expectations crowd, Germany went on to finish Third, trouncing -- nay, destroying -- Portugal, the team of the ever-popular Christiano Ronaldo (who is highly overrated). That's right, Germany did better than Brazil.

I just think that German players are some of the least self-satisfied, harder working players in the world, unlike the overrated Brazilians, the diving Spaniards, or the dirty-playing Italians. I've no beef with the English, other than that their national squad cannot play for the life of them right now. If I had a good picture of me in my official German team jersey, I think I would post it. For now, you will have to settle for this...

Who cares about economic inequality?

2007-04-02T22:52:00.000-05:00

(rambling)

I used to get very exercised by the thought of th widening gap between the richest 1% of this country and the poorest 30% (or any variation on those arbitrary percentages). To some degree, I still do: after all, in certain microeconomic situations, wealth is a zero sum game (though not in the aggregate economy, to be certain), and one robber baron's takings is a direct loss to workers' wages and benefits.

But it occurs to me, among many others, that economic inequality itself is nothing to worry about in the abstract. In particular societies, it can be an ill, of course. But the main thing I worry about is how the poor and the working class are doing. If the poor and working class in a country are able to reliably afford adequate shelter, food, clean water, educations for their children, health care, and find jobs if they want them, then that country is doing well, no matter what the inequality gap is. At least that is my judgment. Inequality can be rampant and amazing, but if the basic needs (of health and vocation) are met for pretty much everyone, who cares?

If, on the other hand, the worst-off and the second worst-off (the working class) cannot reliably obtain these things, then it makes a big difference that there are CEOs raking in $100 million or more in a single year for doing the same job that never used to pay that much, with no evidence of a productivity expansion in executive performance to show for it. That is to say, massive executive pay is wildly out of touch with what rational markets should be producing when it has no bearing to actual performance and only exists as a weird insider deal between Boards of Directors and "superstar" CEOs that has developed relatively recently. It has no bearing on actual performance because firms were doing just fine 20 years ago without paying their CEOs ridiculous sums of money relative to what they are now. So far, what it accomplishes is a wealth transfer from productive enterprise (the firm's capital, workers' benefits/pay, shareholder wealth) to CEOs who, while not needing the carrot, will be happy to buy another super-yacht with the money.

The upshot of this rambling is this: In the modern United States, I don't worry so much about executive pay and the widening gap between rich and poor as much as I worry about the health care crisis, horrible inner city and rural poverty, and the viability of having a high mobility middle class. I think the last part is the saddest of all because it is the promise of America: get an education and a job and work 80 hours a week and invest your money and you too could buy a house and go on European vacations. To the extent that high marginal taxes (ironically called "progressive" despite their dampening effects) have created work disincentives and made it difficult to break into this vision of the upper-middle class, our income tax system is a failure. But that is a topic for another day.

As long as there are ways to capture some of these mega-earnings and use it to fund direct transfer tax credits and grants along Milton Friedman lines (the "negative" income tax, et al.) then there is no reason society should not be attempting such transfers. Maybe the best way to do this is with a consumption tax, because I'm skeptical of progressive income taxes and believe them to be both destructive of income mobility and unfair in principle.

. . .

random biblical quotation to end on: "Deliver me not over unto the will of mine enemies: for false witnesses are risen up against me, and such as breathe out cruelty. " - Psalms 27:12

The Book of Job shows the Hebrew God to be Wicked and Petty

2007-04-01T15:24:00.000-05:00

Due to a convoluted train of thought, I got to reading the First Chapter of Job today. In my opinion, it makes me completely unimpressed with the Hebrew God (Yahweh), and I cannot understand why I would not prefer to worship a much better God like Odin after reading this. Read Job 1:1-22 here.

Job is a ridiculous story, and makes an even more ridiculous point. God is talking to Satan, and Satan challenges God with regard to his servant Job, saying that if God took from Job all that he possessed, then Job would curse God to his face. God disagrees, obviously, thinking Job to be a faithful servant. So what does God do in response to Satan's tacit wager? The God of the Hebrew Bible allows Satan to destroy the home above Job's children with wind, killing them all. God lets Satan send other tribes to come and take all of Job's animals and slay almost all of Job's servants. Job did nothing to deserve this, and there is no indication that this was bound to happen were it not for God's direct intervention in allowing Satan the power to ruin Job's life. The book does not say a single thing Job had done wrong. In fact, God supposedly allows this to come about as a result of a kind of bet with Satan. And God "wins" the bet, as Job does not curse God but instead prostrates himself before the Lord, praying to him -- this, after God was a party to the slaying of his children without reason and caused his servants and animals to be slain or stolen. How petty is the Hebrew God in this? He allows his faithful servant's entire life to be destroyed to prove a point about how faithful his servant is. This story displays three things to me: Job is a coward for not cursing God for malicious behavior that violates God's own Commandments ("Thou shalt not kill [even to win a bet with Satan]"); the Hebrew God is evil, for he has been a party to murder and theft to prove a point to Satan; and Satan ultimately triumphs here, as Satan basically tricks God into allowing him to commit a bunch of homicides and wreak havok on the life of one of God's most faithful servants. And if you don't believe God is guilty of murder, consider that he was aiding and abetting, by allowing Satan to slay Job's children and servants. I'd prosecute the Hebrew God under any modern penal code in a heartbeat, especially given his obvious power to prevent Satan's murders.

Go ahead, read Job 1:1 yourself and tell me that Odin ever did anything as deliberately evil as what God does to Job.

. . .

On a somewhat redeeming note, Job 21:20 does contain this awesome passage: "His eyes shall see his destruction, and he shall drink of the wrath of the Almighty."

On Academism and String Theory

2006-09-16T12:57:00.000-05:00

Gregg Easterbrook (TNR writer, sometime Slate contributor) published a great article in Slate this past week, on the subject of University Physics departments and their unquestioning acceptance of "String Theory."

The backdrop for this article is the fact that at the top universities, each field of study tends to develop an unquestioned and close-minded paradigm, sometimes manifested as a particular theory of framework within which everyone must work. At least in some departments, there are two or three major frameworks, so that there is still intellectual rigor and argumentation. According to this article, that has not been the case for decades in theoretical physics. And based on my intuitions and perceptions of people I've known who are interested in physics, that is a dead-on accurate claim.

I used to be a theoretical physics nerd, and read lots of quasi-popular books on the subject. I remember when a friend of mine (similarly inclined) introduced me to the concept of 11-dimensional string theory, which purported to explain practically everything in theoretical physics that was interesting to a young physics nerd. It sounded great.

Apparently, I wasn't the only one -- university physics profs have adopted this idea as gospel, and according to the author of the new book mentioned in Easterbrook's article, a young physicist is committing career suicide if he disputes the model! All this without any evidence to speak of for the "theory."

I am pretty sympathetic to these types of claims, if only because academic types do tend to create an entrenched wayof thinking and defend it tooth and nail against interlopers, critics, and entrepreneurial thought by younger faculty. I've seen this happen in numerous fields, such as law and medicine.

Anyway, the article is a good read, if only to update you on the state of theoretical physics in the academy. I find experimental physics far more exciting these days - particle accelerators, new forms of matter, materials science - stuff that might actually help the world and our understanding of nature. Theoretical physics has sadly become a bit like priests in the ivory tower, dispensing their wisdom and silencing any critics of their 11-dimensional theory of being, time, and everything. At least, so it seems. I'd love to read a rejoinder by someone, showing that physics departments are far more open and critical of String Theory. But so far - nada.

No rant, only links

2006-09-12T18:33:00.000-05:00

I don't have a rant today or anything, so I thought I would post neat links and news items:
Good links or news items
Dumb state senator believes God saved him, implying God purposefully killed the other 47 passengers. And you wonder why Christianity gets a bad rap among the intelligentsia, when people say shit like this...

Too funny, middle-aged man walks through airport security with a vibrator in his pants, confuses TSA. Read the whole entry.

Salon's excellent article on "Forbidden Thoughts about 9/11." This should have been published in 2002, but even Salon lacks those cajones!

My new favorite random distraction online: Commercials I Hate.

British Police stop photographer under Anti-Terrorism Law, log his activities. The Western "War on Terror" has become such a ridiculous trope that it is not even worth hypothesizing about anymore - the truth is stranger than fiction.

That's all for now.

More Buchanan

2006-09-05T01:22:00.000-05:00

Want to hear Buchanan sound like a radical leftist? (or certain college Professors on the Left, anyway)

The Bush plan is economic treason against the American worker. That “civil rights leaders” are silent about the dispossession of the black working class, that unions are not marching to denounce this sellout of blue-collar and white-collar America, only tells us that the amorality of the transnational corporation has infected both. Solidarity be damned, it is all about money now.

-- Buchanan, State of Emergency

Hahaha! And the traditional political spectrum (left-center-right) makes no sense at all. Buchanan, as far right-wing as you can be and still speak on television in this country, and a populist-type, syncs up with left-liberals on trade agreements and corporatism, as well as black racial impoverishment via negligent economic policies.

Pat Buchanan

2006-09-05T01:03:00.000-05:00

Pat Buchanan is an iconic figure for my generation. He has consistently taken a "nativist," anti-trade, anti-immigration, anti-interventionist stance in foreign affairs, outmaneuvering both Left-Liberal Democrats (whose flaw is their aversion to trade agreements as an absolutist principle) and Conservative Republicans (whose flaw is their borderline hatred of immigrants and recent penchant for arbitrary invasions of sovereign nations).

For all his oddness and references to America as a Christian Nation, I think Buchanan can sometimes be right. I'm not sure if he is "right" on immigration policy, but he makes this Hispanic/Latino leader look foolish in this CNN exchange between Buchanan and National Council of La Raza President Janet Murguia. Buchanan points out that while Murguia dislikes Buchanan's stance on immigration policy, she cannot point out any factual or logical errors on his part, or suggest why his policy preferences are incorrect. Instead, she attributes his stance to his "trying to sell a book." That's bullshit -- Buchanan has had this stance forever, and furthermore, she is just as guilty. She is trying to promote her lobbying organization - The Nat. Council of La Raza - an organization, which, let's be clear, seeks rents and rights for a particular race of Americans and non-Americans. I hardly think it is strange to question her legitimacy as an independent commentator when she leads a racial lobbying organization. And no one can really argue with my characterization -- after all, does La Raza lobby for any black Americans?

Buchanan also has a blog now -- no shit! -- and you can read it at right from the beginning. The headliner quotations on his blog change whenever you login/refresh, but this one, a quote from his current book, jumped out at me:

In 1960, the U.S. population was 89% white. By 1990, it was 76%. Today, it is under 70%. By 2050, white Americans, the most loyal voting bloc the Republican Party has, that provides 90% of all GOP votes, will be just another minority because of an immigration policy championed by Republicans. When John Stuart Mill called the Tories ‘the Stupid Party,’ he was not entirely wrong.
-- Pat Buchanan, State of Emergency

Another Slate attack on Murray for no reason

2006-08-27T15:56:00.000-05:00

Again, another article where a Slate writer with no credentials or books to his name attacks Charles Murray, a controversial libertarian thinker who at least has ideas. See it here if you're utterly bored and contemptuous of Slate - Charles Murray vs. Amazon. By Timothy Noah - Slate Magazine.

Seriously, accusing Murray of being Chauvinistic because his list of the greatest Physicists is male-dominated and euro-centric? It's obvious to me and everyone not living under a paleo-conservative rock that women have been held down and repressed for most of civilization's history (excluding female-dominant civilizations, of which there are a few). So we have a syllogism:

Males have dominated power in civilizations that have made great scientific and technological advances and only within the past few decades has this started to change towards anything resembling equality. Duh-fucking-uh.
There have been vast changes in science and technology since Plato.
Conclusion: Maybe most of the advances in science were made by men!

Bemoan this fact you might, but you cannot change it by being politically correct. It's regrettable from an egalitarian ethical perspective, but most scientific advances were made by men, not women. Murray is not trying to hide this fact, and I doubt very much he has any anti-women crusade behind his work. Consider that he spends a good portion of "In our Hands" (his plan to replace the Welfare state) talking about how empowering it would be for women over truculent/bad husbands. Damn straight!

Slate: A note to your dimwitted authors. Read a man's complete work and understand it before judging him as a bad left-liberal, and therefore inferior. Idiots.

A review of a review of a review of a review

2006-08-27T14:51:00.000-05:00

One of the hallmarks of academic liberalism is vigorous defense of any "intellectual" (read: left-liberal professor at prominent university such as Harvard) who calls a non-left-wing intellectual a racist. This takes various forms, and I wasn't around for the original "Bell Curve" debate of the early 1990s, but last year Slate publishes a terrible piece of tripe masquerading as genuine journalism, criticizing Charles Murray and Andrew Sullivan (two bete-noires of the left-liberal media/intelligentsia for years now).

The article - The Bell Curve revisited. By Stephen Metcalf - Slate Magazine - is a thinly veiled ad hominem attack on Murray, with sprouts of an assault on Sullivan for portraying himself as the intellectual minority in modern America. Sullivan plainly is in the minority - he is a gay punidt of the stripe of an conservative-libertarian admixture, and the people who agree with him can be counted on a stick. That is not likely to be the result of clever positioning on his part, as Stephen Metcalf alleges, since I've repeatedly watched Sullivan give the wrong, non-headline grabbing response to current events, when he could have gone for gold. But Metcalf snarkily implies Sullivan is simply that - a headline-grabber and not intellectually honest. Typical liberal-left punditry, I'm sorry to say.

I'm not necessarily a Sullivan fan, and I disagree with him on a number of things, maybe everything, who knows? I also like reading Slate, and tend to agree with moderate left-liberals more than moderate right-conservatives (whatever the latter means). I don't think I'm biased in saying that Metcalf's lack of intelligent criticism plus chutzpah makes his commentary almost worthless. But it gets worse when Metcalf starts attacking Murray as a racist, and "innocently" starts citing left-liberal academics to buttress his implications that Murray fudged data to present the black American as inherently inferior. His sheepish, shit-eating-grin (think of Tom Cruise) style "critique" of Murray is worth reading to see how easy it is for a liberal reader such as myself to just let myself be lulled into nodding along with a complete idiot. Murray isn't racist, and Metcalf cites zero proof that he is. But he implies it constantly, just barely dodging a good defamation lawsuit as only a snarky left-liberal pundit can. What a weak-ass performance. For shame, Slate.

Google Maps + Google Video + Mashup - Claude Lelouch's Rendezvous

2006-08-21T15:50:00.000-05:00

Google Maps + Google Video + Mashup - Claude Lelouch's Rendezvous: "Back to bhendrix.com

'On an August morning in 1978, French filmmaker Claude Lelouch mounted a gyro-stabilized camera to the bumper of a Ferrari 275 GTB and had a friend, a professional Formula 1 racer, drive at breakneck speed through the heart of Paris.

No streets were closed, for Lelouch was unable to obtain a permit.'"

Mexican Fishermen lost at sea

2006-08-21T14:51:00.000-05:00

Mexican Fishermen found after one year lost at sea, 5500 miles from home port!

This is crazy shit. I love it.

Gibson's Anti-Semitic Tirade

2006-07-30T12:56:00.000-05:00

I have to link to this story -- Gibson's Anti-Semitic Tirade.

It just confirms what we basically already know: despite protestations to the contrary, the uber-Catholic, right-wing Gibson is a wholesale anti-semite. I don't care if you think Israel is responsible for a lot of the middle east mess, making remarks about a people who are not all Israelis or even pro-Israel is pretty damning evidence of racism without basis in fact.

It also makes me giggle at all the Gibson apologists who tried vainly to convince me that right-wing Catholicism was not anti-semitic (as a movement) when the Passion of the Christ came out. But really, Gibson is the public face of right-wing Catholicism. And now he has spoken. Drunkenly.

Addendum: I don't care about this "cover up" arc the news media is reporting.

World Cup 2006: Screw you Brazil!

2006-07-01T15:56:00.000-05:00

I just watched the arrogant "giants," Brazil, lose to France, who NOBODY expected to go very far in this Cup. I love it.

So many people love Brazil because they are the Yankees of International football, and have won the most titles. But really, after sitting through 90 minutes of announcers constantly telling me how great Brazil is, and how they were expected to win... France dominated. I counted maybe three shots by Brazil on goal today (excluding the free kick they were granted when Ronaldo took an obvious dive near the top of the box, like the pro Brazilian drama queen he is).

I don't often cheer for the French, but I'm delighted to see them smoke Brazil.

And don't even get me started on how cool it was to watch Germany beat out Argentina on penalty kicks in a Latino dive bar in central DC yesterday. It's amazing how many latinos and even some non-latinos root for whichever latin team is playing, irrespective of the fact that they are not from there and have no reason to... I don't do that with European teams (and I'm not European either). I didn't root for numerous teams, all I really wanted was Germany and the U.S.A. to go as far as possible. I only liked France because they were playing the over-hyped Brazilians...

But enough soccer rambling.

The Chronicle: 5/5/2006: The Self-Inflicted Wounds of the Academic Left

2006-05-02T16:02:00.000-05:00

The Chronicle: 5/5/2006: The Self-Inflicted Wounds of the Academic Left:

"Professor Brennan is right that the academic left is nowhere today. It matters more to David Horowitz than to anyone else. The reason is that its faith-based politics has crashed and burned. It specializes in detraction. It offers no plausible picture of the world. Such spontaneous movements as do crop up in America — like the current immigrant demonstrations — do not emerge from the campus left. Neither do reformers' intermittent attempts to eject the party of plutocracy and fundamentalism from power, to win universal health care, to protect the planet from further convulsions, to enlarge the rights of the least privileged. If more academics deigned to work toward reforms, they might contribute ideas about taxes, education, trade, employment, investment, foreign policy, and security from jihadists. But the academic left is too busy guarding the flame of nullification. They think they can fortify themselves with vigilance. In truth, their curses are gestures of helplessness."

Too true. These are the brilliant people who can sit around and bash President Bush as much as a blue-collar worker can, but cannot for the life of them recommend alternative policies. A shameful waste of intellectual resources.

I am Boston.

2006-04-13T12:31:00.000-05:00

You Are Boston

Both modern and old school, you never forget your roots.
Well educated and a little snobby, you demand the best.
And quite frankly, you think you are the best.

Famous people from the Boston area: Conan O'Brien, Ben Affleck, New Kids on the Block

What American City Are You?

Does beer cause cancer? By William Saletan

2006-04-13T12:18:00.000-05:00

In one of Will Saletan's "Human Nature" columns today, Does beer cause cancer? By William Saletan
he illustrates the problem with some studies on nutrition and cancer risk:

Beer may increase your risk of lung cancer—but wine may lower it. In one study, "after smoking was discounted, drinking up to six beers per week increased the risk of lung cancer by 20 percent, and by 50 percent for seven or more beers consumed in the same period." In another study, "beer appeared harmful to men who did not eat fruit and vegetables regularly while men who drank wine saw their lung cancer risk drop by 40 percent, and women by 70 percent." Interpretations: 1) Beer causes cancer; wine prevents cancer. 2) Beer drinkers eat fried food, which causes cancer; wine drinkers eat vegetables, which prevent cancer. 3) Wine drinkers, being richer and better educated than beer drinkers, take better care of their bodies in lots of ways. (For Human Nature's previous updates on the putative benefits of alcohol, click here and here.)

The real problem with correlations in studies like these are all the dark variables hidden in the mix. Wine drinkers are undoubtedly richer, better educated, and live in cleaner, safer environments where they are less likely to encounter other factors that lead to lung cancer, like jobs with chemical fumes in the area. For the average beer drinker, the opposite is true. And then there is the impact of a fiber and nutrient rich diet in fruits and vegetables, which has a plethora of studies backing it as the best cancer prevention. What if a lot of the results in seemingly conflicted studies like these could be explained merely by plotting the intake of antioxidants (primarily found in fruits and vegetables though also in red wine) of the study participants?

Of course, the questions I raise are nothing new to scientists. I just find it interesting that there are fewer "holistic" longitudinal studies on people, say by putting normal healthy individuals on a particular diet/exercise/life plan, that is stringent and allows us to see how well these "holistic" living plans work. An example might be a plan that has a strict vegan diet, daily exercise on a plan designed by a physical fitness expert, constant medical check-ups for preventive healthcare, and insistence on things like eight hours of sleep, normal work schedules, et cetera. My point is that if enough participants in such a 5-year or 10-year study were around, you could draw some interesting conclusions about how people should live to maximize their life expectancy and resistance to disease.
The point should not be lost on people who don't care about their own life expectancy either, because even people who do not want to live past forty would benefit from such a study by learning how to live with as much disease-resistance as possible. Some people might not want to grow old and might want to burn out young, but everyone hates living with sickness and fatigue, unable to enjoy what time they have on the planet.

First Bladders Grown in Lab Transplanted

2006-04-04T11:26:00.000-05:00

First Bladders Grown in Lab Transplanted: "Researchers said yesterday that they have grown complete urinary bladders in a laboratory and transplanted them into patients, improving their health and achieving a Holy Grail of medicine: the first cultivation of working replacements for failing solid organs in people."

I'm not sure more needs to be said about this except, "Hell yeah." I'm very excited to see where med tech goes in the next twenty years before various organs of mine start to fail. Selfishly excited, in fact. I'd also like to hear an update on something neat happening with nanotech but I'm worried that will be for the next generation, and not mine...

CNN.com Report: Somali Pirates grab 50 Yemeni Fishermen

2006-03-07T13:51:00.000-05:00

CNN.com - Report: Pirates grab 50 fishermen - Mar 7, 2006: "Saba quoted a Yemeni official as saying that Somali pirates abducted the fishermen on Monday from four boats off of Yemen's Abdul-Kori island, part of Socotra -- a small archipelago in the Indian Ocean off the Horn of Africa."

Look. Obviously this is tragic, both for the families of the fishermen and for the international community and its avowed disapproval of piracy. But I have to admit... this made me laugh. To think, that in the 21st Century we still have pirates!

What was the old saw about the "curse" of living in interesting times? Sign me up.

The right against governments to freedom of expression

2006-02-12T23:53:00.000-05:00

What is it about the fundamental right to free expression that troubles the world so? There are seldom reasons to qualify the right, except in cases of its criminal abuse (yelling "Fire!" in a crowded theatre when there is no blaze) or very narrow cases of expediency in a time of war (I leave the reader to imagine these examples). Otherwise, I see little to no reason to qualify the right. J.S. Mill thought of it as the most important of freedoms in a liberal democracy, and its supporters of all political stripes have shielded it quite strongly throughout American history (much moreso than European governments, I must say). The right is a near-absolute, despotic and negative claim against government: here thou shalt not pass, here thou shalt not regulate.

But the broad Muslim world has, for the most part, rejected this freedom for its people, preferring instead an autocratic, government-run monopoly on speech and debate. This is the same system that Western Europe went to great pains to extinguish over the centuries running from the English Bill of Rights to the powerful protection of free expression by even the most conservative American Supreme Court Justices (witness Justice Scalia's defense of flag-burning as protected political "speech" in a famous case). On analysis, this country above all others has protected this right fiercely, and that is something to be very proud of...

...which is all the more reason that the Bush Administration's response to the Danish cartoon scandal is so lame. They are appeasing the radical Islamists whose agenda is to link in Western minds their ressentiment and political rhetoric with something that ought to be championed. The Islamists have a very real and articulated goal of convincing the nation with the strongest tradition of speech protection to make an exception for their intolerant anti-liberal views. And they have largely succeeded.

Volokh Conspiracy has a photo of a woman, purportedly from Kenya, protesting the protection of freedom of expression as "Western terrorism." I'm sad to say that this blatantly Orwellian phenomena is eerily similar to the postmodern attempt to redefine all actions as ideological. "Freedom of speech" becomes, in this Continental philosophical analysis, merely clever words for Western imperialism. And so Orwell is spun onto his head... he lies upside down, gasping for air, aghast at what the intellectual class has done. "Tolerance" has now become absolute, and we are asked to tolerate the intolerant. But of course this absolute brand of tolerance is one no liberal democrat would ever fight for -- not one committed to principle, at least.

Military Spending, The U.S. Budget

2006-02-09T12:27:00.000-05:00

There's a good explanation of some of the stupid things our current government is spending money on in an article by Fred Kaplan over at Slate, entitled Defense Budget 101 - How much are we really spending?.

I am not one of the leftist "deficits don't matter" types who thinks we should just slash the defense budget to $50 billion from $583 billion (where it stands now when you include all the Iraq and Afghanistan spending). I would however, like to see it trimmed to $200 billion and get rid of a ton of weapons programs that are targeted at nonexistent foes. Kaplan's article does a great job discussing this phenomenon.

What to do with the $383 billion saved? This money would take a big chunk out of the deficit, especially going into the future. But not enough.

The Intractable Budget Deficit
Because voters are mainly foolish and believe fancy, expensive ad campaigns that basically lie to them and oversimplify complicated policy discussions, my hope for Americans, on their own terms, to cut the deficit into the future... well, it's slim at best. The only hope I have is that some members of Congress who vote on principle at least half the time (there are actually a number of them) will eventually restrain two huge areas of spending:
1) Entitlement spending (set to go through the roof in a decade)
2) Military spending (often far too high for our uses)

Obviously we cannot just slash both right away. We have to "finish" the Iraq and Afghanistan campaigns first, rather than leaving those regions to be boiled into authoritarian regimes (again). As long as we're promoting liberal democracies (those words subsume "capitalist" as well) we may as well make sure they actually work out.

Entitlement spending is tricky. While social democrats think it is the most important goal of government in the twenty-first century, I think it's safe to say that we cannot afford much of their "prescriptions" for success any time soon. The costs of transitioning to a more ambitious universal coverage system in healthcare are enormous, no matter what you think of the post-transition costs of maintaining it (which might be lower than our current system due to scale efficiencies, price controls, etc). Furthermore, social security is in a bad, bad way now, no matter how many articles Paul Krugman writes rejecting its incipient demise. Part of the problem is political, and part of the problem is historical. Since the "trust fund" has been raided ever since it began, there is basically no money in it, only government IOUs from one branch to another (legislative --> executive agency). Furthermore, while the system is sustainable until 2038 or something by its own estimates, the word "sustainable" hides some pretty draconian tax measures that will be required to sustain it. That is, we'll see massive income tax increases, and slashes in other areas of the budget (transportation, education, etc).

What's wrong with this picture? Economic growth, ceteris paribus, isn't going to happen at levels we need it to if we tax the hell out of everyone. When I say "ceteris paribus" I mean without more; I mean that we have had growth at other times in history while having huge taxes but that was short-lived and due to other extraneous factors. The fact is, if we jack up taxes, capital will leave out country over time -- that's the "problem" of a globalized economy. Tax rates drive away investment -- hence the Irish miracle of the 1990s (where they slashes income taxes across the board and experienced phenomenal growth). Why do we need economic growth? Without growth, or in the face of economic decline, NO ONE will be able to pay into social security at levels high enough to pay out the benefits we've "guaranteed" baby boomer seniors. We are implicitly relying on continuous economic growth to fund the wealth transfer that is social security!

So we cannot severely raise taxes to fund SSI -- or even go further to fund a universal healthcare transition, and we're also "starving the beast" on all of our social policy goals by deficit spending on the military. What to do?

That's tough. My instinct right now is to say: jack up taxes now on income, investment income, and eliminate favorable tax benefits and subsidies for a whole host of industries and groups of people; gradually cut all new weapons programs unless they can be shown to be important for our missions in Iraq, Afghanistan and as "world cop"; get out of Iraq and Afghanistan ASAP as they move to more stable governmental systems; slash defense spending generally by $100s of billions; lower the promises social security benefits by means-testing more aggressively and raising retirement age to 70 or 73; slash education spending and allow states and local governments to fund their damn schools and choose their curriculums.

Any dissent on those ideas? There oughtta be...

CNN.com - Bush urges end to cartoon violence - Feb 8, 2006

2006-02-08T12:33:00.000-05:00

CNN's headlines are frequently atrocious -- and hilarious. They can never seem to figure out how to write one...

For example, consider the following story, headlined, "Bush urges end to cartoon violence." And here I thought Bugs Bunny was the least of our problems...
CNN.com - Bush urges end to cartoon violence - Feb 8, 2006

Cartoon Debate - The case for mocking religion. By Christopher Hitchens

2006-02-08T09:27:00.000-05:00

Cartoon Debate - The case for mocking religion. By Christopher Hitchens

Indeed. I almost completely agree with Hitchens in teh above article. Being free means being free to be offended by others' publications and speech.

Napalm in the Morning Speech

2006-02-03T13:44:00.000-05:00

I love Robert Duvall's speech in Apocalypse Now, as Lieutenant Colonel Kilgore.

Kilgore: You smell that? Do you smell that?... Napalm, son. Nothing else in the world smells like that. I love the smell of napalm in the morning. You know, one time we had a hill bombed, for twelve hours. When it was all over I walked up. We didn't find one of 'em, not one stinkin' dink body. The smell, you know that gasoline smell, the whole hill. Smelled like... victory. Someday this war's gonna end...
[walks off unhappily]

Noscitur a sociis

2006-01-27T15:56:00.000-05:00

This has got to be one of the most deliberate attempts by a law student to establish his or her nerd leadership.

I admit that normally I would never take an online quiz to determine, "What canon of statutory construction are you?" But then again, I am in "Legislation" this term, and I find statutory construction sexy...

Line of the Day

2006-01-25T21:27:00.000-05:00

Another friend of mine, commenting on why working in the DC "insider" culture wouldn't be that great:

"Just because you get into the room doesn't mean you would enjoy jerking anybody off."

Priceless.

The Perils of (Even) Higher Education

2006-01-23T15:55:00.000-05:00

This missive from my friend, chatting during one of his classes...

Anonymous (3:51:13 PM): This one guy KEEPS talking, keeps raising his hand. Really pretentious tone. And he looks like Michael Douglas in "Falling Down," so I'd be afraid to demonstrate even limited contempt for his chatter.

Ahh, the perils of legal education, which selects for the most pretentious people from undergraduate education, gives them the entitlement "law student" and lets them speak in class. We would all value our fellow man much more if there were a strict lecture-only policy. But alas, my contempt for my fellows in the intelligentsia grows daily... I can see why those who are intelligent but out of the elite mainstream despise the elite "mainstream" (the "intelligentsia" of professors, journalists, scientists/researchers, and political groups who hold liberal-socialist views within roughly the same sphere as each other). It would be hellish to be completely out of their circle and have to deal with their incessant talking amongst themselves on a daily basis in just such a manner as described above.

My heart goes out to disaffected conservative and libertarian writers and researchers. I am not one of your own, but I understand how the mainstream elite press must sound to you. Neither am I sympathetic to the iwitticisms digested and regurgitated in self-congratulatory mainstream elite opinion. And yes, I did just invent the word "iwitticisms."

i-wit-ti-cism, n.
A boring, repetitious, or worthless remark. See synonyms at Trite, Hackneyed, et cetera.

There, I said it. I hate pompous and annoying persons of all political persuasions, but particularly those with political, economic, or social power.

Scalia's fair-weather federalism, plus Old People causing accidents

2006-01-19T17:14:00.000-05:00

Scalia
I'm a big fan of Justice Scalia; that is, I like Scalia the writer, Scalia the idealist, Scalia the purist. As a judge, however, he is far from the ideal set forth in his book A Matter of Interpretation or his various articles on judging. Scalia employs certain theories and doctrines as he sees fit, and always comes to a decision that would make sense politically for a social and economic conservative (as well as religious conservative). Every now and then he does something vaguely "liberal" when it won't actually hurt the cause of social conservatism and when he wants to grandstand.

So William Saletan at Slate has a nice article on Scalia's fair-weather treatment of fundamental constitutional principles. Basically, Saletan's article is hard to read for the first part of it, but the second part makes a lot of sense and is something I have noticed in the past as well. Scalia is a fair-weather federalist: there is great importance of giving states the freedom to try out legislation in the realm of public safety, criminal law, and so forth. This allows the states to act as public laboratories to evaluate the effectiveness of things like legalizing prostitution (Nevada), assisted suicide for terminally ill patients (Oregon), or medical marijuana (California). Scalia likes to parrot this line a lot when the stakes are abortion -- obviously he doesn't like that we have a national rule for all 51 jurisdictions that precludes many restrictions on abortion. But when it comes to legalized marijuana or assisted suicide? Scalia backpedals and suddenly, the "states as laboratories" thing isn't so important:

The fact that many in Oregon believe that the boundaries of 'legitimate medicine' should be extended to include assisted suicide does not change the fact that the overwhelming weight of authority (including the 47 States that condemn physician-assisted suicide) confirms that they have not yet been so extended.

I also would like to note that Scalia, who is obviously above politics and concerning only with reasoned elaboration of "what the law is," decided to quote from a Friend of the Court Brief in the assisted suicide case Gonzales v. Oregon that was filed by the Pro-Life Legal Defense Fund. Hmmm, nothing political there. Anyway, read the article, or better yet, read any set of Scalia opinions on abortion and assisted suicide/marijuana and tell me why federalism concerns should be selectively invoked to satisfy political desires on the part of religious conservatives.

Old People in Cars
Everyone "knows" that young drivers are very dangerous in their cars, and insurance rates reflect this, right? But many people don't understand the great danger posed by old people (armed with cars). Yes, the same demographic that is spending the federal budget into the ground with entitlements, decrying the supposed "decline" of public morality, and voting in large numbers to send young people to die in foreign wars. Yep, the same generation that is celebrated for its experience and perseverance during the cold war. Bullshit. You know what I want to point out? Old people cause a ton of car accidents, and the victims are probably younger people, who still have long lives ahead of them and don't need to be cut down by some nearly-blind person who stubbornly refuses to pay property and income taxes for public transit or refuses to hire a driver/use a family member for transportation.

The stats on this page reflect this pretty well for me (look just past midway down the page for the rate of fatal vehicular accident involvement): While young people between 16-24 are the most dangerous, pound-for-pound, the often overlooked class of people above 70 are also deadly. Especially the most dangerous class of all: people over 85 who continue to drive on public roads, the highest pound-for-pound causer of traffic fatalities in the United States.

A Concise Argument against 'Intelligent Design'

2006-01-16T19:31:00.000-05:00

Today I suffered from the deficiencies of our supposed "intelligent designer." As I was eating two very hot and very delicious bagels (one of which was actually a sandwich with pastrami), I bit my cheek not once but twice. Now this happens to me (and others, I presume) from time to time. My question is: Why would an all-powerful, massively intelligent "designer" design my mouth so that I would bite my cheek when I make a common biting motion with my jaw?

The answer, of course, is not that evolution is true and that mouths are imperfect. THe answer is that our intelligent designer is really dumb. In his drunkenness on Day Seven (see, e.g., Genesis) he obviously fucked up when he created the human mouth. For this I shake my fist at the sky.

And you cannot have the idea that 'he' modified our mouths after expulsion from Eden as a punishment. "From this day forth, thou shalt bite thy cheek with every seventy-fourth chew, and this shall be your punishment for your sin!" No, indeed, this would be akin to suggesting that the Designer actively intervenes to change, morph, or "evolve" human beings at his whim. I don't think that is the path the creationists want to go down!

New York Times: Portland best place for brewpubs

2006-01-15T14:33:00.000-05:00

Apparently, we all need to go to Portland to enjoy some good brewpubs!

I like good brewpubs. Town Hall in Minneapolis is my favorite because it the best brewpub in my hometown. I have not yet found an excellent replacement in the DC-area, but I will try this summer.

The moderation of judges

2006-01-13T23:34:00.000-05:00

There was a recent article in the Boston Globe about how judges most often drift liberal over time, which is to say "liberal" in the modern sense (high amounts of state regulation of the economic sphere, and an embrace of social and multicultural liberalism in the social sphere). I also was linked on some page to this old interview with Richard A. Posner, where he has this quote which is very interesting (given that Posner has widely been considered a conservative-libertarian economics-meets-law guy):

The second point is that the experience of being a judge is bound to moderate one's views. When you are dealing with large doctrinal policy issues in a rather abstract way, it's very easy to allow your general outlook on things to carry you to foreordained conclusions. But when you are actually forced to consider both sides of the case, often you realize there is more to be said on the other side of the case than you might have thought. So a lot of statutes that I would have ridiculed as preposterous interventionism in the economy, when looked at up close in the context of the specific case, make more sense. I have learned there is more to be said for some of these interventionist laws than I had initially thought.

No doubt many of those who call themselves "libertarians" have not lived in a world without significant labor, health and safety regulations, and so cannot (or will not) understand the purpose behind their enactment. Remember that it was less than a century ago that libertarians were fighting tooth-and-nail to prevent the enactment of a statute in the U.S. banning child labor (under age 14). These were kids, working forty-plus hours in coal mines and factories, and libertarians said, basically, "freedom of contract... they knew what they were getting into." Sometimes I read history, non-partisan, purely factual history, and I blanch.

Originalism, Part Trois

2006-01-12T11:19:00.000-05:00

Alright, there are two debates that surface in the comments when I write about Originalism.

The Varieties of Originalist Experience
One is that I'm not really rejecting originalism, though I am rejecting a version of it that some people hold, a version I will call "ad hoc" originalism, which holds basically that you choose the original meaning of a text only when that makes the most sense and supports the rule of law, but that otherwise you follow text, precedent, or history as the case may take you.

I am over-simplifying here, which is uncharitable. The "ad hoc" version of originalism says that when you construe the meaning of a text or clause of a text, you consider the following sources as evidence of what it could mean:

Text
Precedent
Original Public Meaning
History

None of these is innately privileged (lexically) above the others, though some are considered to be of higher value in some cases. By this, we mean "value" in terms of the source being evidence for what the "true" or "best" meaning of the law is in that case. For example, sometimes precedent must be followed to preserve the "rule of law" values of predictability and stability in the law, which is (supposedly) why the U.S. Supreme Court in Planned Parenthood v. Casey preserved the fundamental holding of Roe v. Wade, against some very good textual reasons for overruling it. In any case, these possible "sources" of meaning are balanced against each other, and the most reasonable meaning is extracted that would serve the rule of law values of predictability and stability. Notice that this is predisposed to a certain conservatism (preserving the status quo), and it allows a genuine political conservative judge to pick-and-choose among the sources and find exactly the meaning that will preserve the status quo in as many cases as possible (except of course, where all the factors point towards a non-conservative meaning, in which case the judge can decide the case is non-justiciable for any number of reasons!). The major problem I have with this ad hoc originalism is that (1) it is not predictable as a method except inasmuch as it very often leads to preserving the status quo ante, and (2) it is inherently built to allow political decisions to be shielded under the guise of a "methodology" when in fact they (the political pre-decisions) are determinate. By allowing any of several sources to be privileged in different cases, an "originalist" in this mold can claim they are "following the rules laid down" and not doing politics, when in fact they have selected a particular source of evidence for purely political reasons. My evidence for this? A remarkable number of studies by political scientists over the past thirty years suggests that justices of the U.S. Supreme Court are relatively predictable over the long-term based sheerly on their perceived politics, and most of them are or purport to be ad hoc originalists in this mode. Whether or not you think the more "liberal" justices fall into this category is colored by the fact that they certainly reason this way for 99% of their written opinions.

It is probably true that most modern Republicans, as well as Judge (soon to be Justice?) Alito and Justice Scalia espouse a variety of this "ad hoc" theory of originalism. And without espousing it, most justices and judges actually do follow some variation on this general approach, the vast majority of the time. I do not believe this is a coherent theory, in terms of predictability. At best this makes it easier for an outside observer to predict the result a judge will come to based on the judge's politics and not on the judge's method, the latter of which is the only "legitimate" source of judicial decisions in a constitutional democracy such as ours.

Why is it easier to predict based on politics? For the vast majority of cases, ad hoc originalism, formalist originalism, and "living constitutionism" come to the same or substantially similar results. But the vast majority of cases is not what the U.S. Supreme Court hears! The U.S. Supreme Court hears only the most marginal, most tricky, most indecipherable cases, ones upon which lower courts have already disagreed. These cases demand that you have a theory that will explain and predict what the result should be, much like a science. If you don't have such a theory, then what the justices are doing is little more than politics, and they constitute an illegal super-legislature. Note that I do not think every "valid" method must be determinate in all cases, but I think that it should make it difficult to predict a judge's decisions based on politics, and that it should explain how all decisions can be made non-politically by attempting to constrain the discretion of unelected judges in these marginal cases.

There is a more "formalist" version of originalism that I consider superior from time to time. Many other thinkers have layed out such a theory, so I cannot claim credit for it. That version is basically what I wrote up in my second post on originalism: You look at the text and only the text first, and if the text is clear and unambiguous, then you use that meaning, period (textualism). Secondly, you look to the original public meaning of the statement as revealed through history or legal thought at the time of ratification to spell out the meaning as best as you can (originalism). In this "formal" definition, originalism takes back seat to textualism, and I think that is the most appropriate method because it protects the rule of law (predictability) from what we identified in ad hoc originalism - the tendency to choose your source of law based on whether it conforms to your politics. This remedies the perversion of a judge who says, "I know what the clause says, and I know it is unambiguous to a lay reader, but what the clause really means is X..." I think it is manifestly unfair to be able to alter the meanings of unambiguous clauses by reference to anything that was not ratified by the voters -- and all originalist evidence is not part of the constitution, and was therefore never voted and enacted by popular will. Therefore, I privilege textualism above originalism for that initial inquiry. To the extent we need that linguistic context to spell out the meaning of what was enacted, in the second order originalist evidence may be brought to bear on the clause.

The benefits of this formal system of adjudication is that at every step of the interpretation, you know what you can and cannot do. For example, until you have determined that it is unclear from the text (and only the text) whether the Eleventh Amendment precludes a suit between a citizen of Virginia and the government of Virginia, you cannot pursue some legislative or legal history to decide the matter.

Political Rhetoric and "Originalism"
My second major problem is with the popular use of the term "originalism." When used by talking heads on CNN or FOX NEWS, "originalism" doesn't correspond to a non-political, articulated version of either formalist originalism or ad hoc originalism. Even accepting for a moment that one could be an ad hoc originalist and not allow politics to sway one's beliefs when ruling on an indeterminate legal matter, it still doesn't correspond to the way "originalism" is bandied about on television and before the public.

What "originalism" means to the public is "conservative results," period. I could enumerate many examples, but the fundamental problem I have with calling a judge an "originalist" in the public sphere is that it means I am calling him or her a political conservative, and not describing the judge's method at all. That is because for a judge to be reliably called an "originalist" in the public sphere, they have to reject formalist originalism, which would sometimes lead to what would be called "liberal" results. They also have to have rejected a non-politicized version of ad hoc originalism as well, which could also lead to unacceptably "liberal" results. Now note that when I say this, I do not mean to say that some results are liberal and some conservative -- only that the public views it that way. The public will attribute a "liberal" label to a judicial opinion even if it is painstakingly formally originalist in its methodology. Imagine the public reaction if, for example, Justice O'Connor's dissenting opinion (joined by J. Thomas and the late C.J. Rehnquist) in Gonzales v. Raich had carried the day last June? The opinion was well-grounded in a modified (ad hoc) version of originalism that respected precedent, but it would have resulted in allowing states to decriminalize small amounts of marijuana for cancer patients to grow, purchase, and use to alleviate their pain. The public would have unequivocally responded by labeling this a "liberal" result, despite the originalism that went into it. Even using Justice Thomas's radically formalist originalist methodology from his concurrence in United States v. Lopez (1995) would have allowed California to decriminalize medicinal marijuana.

But I digress. My point is that the religious right would not get behind someone who, while reliably originalist, was also reliably "liberal" in terms of results. They would stop using the word as a positive descriptor and make of it a pejorative. That observation explains why I cannot imagine the public use of "originalism" to be anything other than a sheep's clothing trick, protecting the identity of hardcore , result-oriented conservative jurists.

German Weizen-Bier, Part II

2006-01-11T22:59:00.000-05:00

German wheat beer is great. I tried Schneider Weisse Hefe-Weizen (Original) from Private Weissbierbrauerei G. Schneider & Sohn (Munich) for the first time this evening, and it was good. So good, so complicated -- like a wine. It was not overly hopped like an India Pale Ale, though I understand that some people like that kind of thing (I do not). It was not weak like an American Lager, lacking in real flavor. Instead, it has layers of taste that unfold as you drink it. I highly recommend.

Un-Free Speech and Denying the Holocaust

2006-01-11T18:15:00.000-05:00

'Jewish Academic says that Holocaust Denier Should Go Free'

So this British historian is sitting in an Austrian jail, possibly for a ten-year sentence, for giving speeches wherein he denied the existence of the Holocaust. What's interesting to me is not this case, which is just a sad reminder of the existence of Holocaust deniers and their ilk, but rather the draconian punishments of several European countries for what are, in essence, thought crimes.

Currently, at least nine European countries including Austria and Germany punish the thought/speech crime of denying the Holocaust. In Austria, it can net you a ten year sentence in jail. Why?

I am not suggesting that these fanatics are correct to deny the tragedy of World War II and Adolf Hitler's Third Reich. I am just saying that if you believe in free speech at all, you have to allow them to speak, unless they are willfully inciting incipient violence with their speeches, at a rally where people are wielding pitchforks or rifles. But that is not the case with an elderly professor questioning the accepted wisdom of nearly every intelligent person in the Western world. He might be stupid, he might be utterly wrong, and he might have immoral intentions, but those alone, apart from some criminal act, does not warrant imprisonment.

Charlottesville, the necessity of a trip to Munich for beer, and A-Ha [the band]

2006-01-10T15:47:00.000-05:00

I returned to Charlottesville, Virginia last night, my home. It is weird to call it that, since I consider myself a born and bred Minnesotan, living away from "home." But I may as well call myself an east-coast Virginian now, given my plan to remain here indefinitely, subject to whim. Charlottesville has had great weather the last few days, and I'm enjoying the contrast from Minneapolis, Boston, and Montpelier (my last three haunts in the past few weeks over the holidays). Currently weather.com reports that it feels like 22 degrees in Minneapolis, 27 in Montpelier, VT, 36 in Boston, and 53 in Charlottesville, as of 3:50 PM EST. Oh yeah, the sun is out here, too, and there is no snow on the ground. Not that I dislike snow, but a reprieve is appreciated, especially since I am going skiing in Colorado in March. I'll get plenty of snow out west...

Munich Beer
German beer rules, and wheat beer is awesome. So I have been considering ordering some real weizenbier glasses from Straub's, which has a fine selection of authentic glassware for beer consumption.

All this browsing of glassware for drinking fine german beer is demanding of me a return to Europe, particularly East Germany and Scandinavia, although I also have a desire to see Ireland, Scotland, Wales, and Greater England (outside London) on a separate trip. I think a Norway-Sweden-Denmark-Berlin-Munich trip could be great, however, maybe for a fortnight after I take (and pass!) my BAR EXAM in late July 2007.

A-Ha
What a great band, to make such a catchy and annoying song ("Take on me") that keeps getting stuck in my head. Such inane lyrics, but I don't care. A-Ha, I salute thee!

Boston Clam Chowder

2006-01-06T12:32:00.000-05:00

So here I am in Boston, my newest favorite American city. No really - it's fantastic here. I ate sushi and thai food, drank California Pinot Noir on the 52nd Floor of the Prudential Tower overlooking the lovely Boston night skyline while listening to a jazz trio, and walked along a lovely downtown road with wine shops, a guitar shop, and the obligatory ten starbucks-to-a-block (and drank at none of them).

Seriously, the town is as cool as it was billed to me, and I've been here less than twenty-four hours. It's in the running to replace my other favorite city I know nothing about: Chicago. We'll see, I need to light up ChiTown sometime soon to add to my repertoire.

Boston: cold but not like Minneapolis, old and historic, fast but not New York, and well-dressed. Seriously, I have never seen such well-dressed commoners. Sure, in New York and Los Angeles people are well-dressed, but not the college students, not the Twenty-Somethings. Here they all have lovely black and tan designer coats with matching scarves, neatly-kept hair and less of a "city demeanor" than I expected.

Hopefully my trip to Cambridge will rouse me from these initially exuberant and fawning impressions.

stratosphere

2006-01-03T18:09:00.000-05:00

In Minnesota, you are always cold even when it's not cold. You always feel a bit uncomfortable and shifty even though relatively speaking there is no reason for it. Paradoxically, I generally find it to be a comfortable state of Scandinavian descent, lakes, plains, and a kind of stoic but kind demeanor. That's a lot to impute to a region of the country best-known for mosquitoes, cold weather, and Prince. But I'm willing to step off that ledge.

What do I mean by saying that you're always cold even when it's not cold? I'm speaking literally, in part. I have been cold the entire two weeks I have been here, just like I remembered only worse. But I'm cold in spite of the fact that relatively speaking this is a very warm early January, with daytime temperatures around 35 degrees. So really, I'm speaking literally of how cold I've been despite evidence to the contrary that indicates that I shouldn't feel so cold.

But I'm speaking metaphorically too. This place feels a little isolated, a little cut off from circulation, a bit too chill sometimes. People go to work, run errands, go home, sleep, and begin the cycle anew. But it's so much more discrete, and rule-like here. It's so patterned. You don't stop and wonder about the purpose of doing what you're doing, and you don't sidestep your routine on a whim. You just hack through each day as though it were a bunch of weeds needing cutting in the springtime. But it's winter, and the sense of accomplishment I get from shoveling isn't enough to overcome the fact that when I walk out the door, I see lots of houses but no people outside them.

The suburbs, modern society, and the anxieties of American life do that. People are busy -- always! Must always keep busy. If you're not at work, sleeping your six hour shift at night, eating a quick meal, or buying some necessities, then you better be exercising, networking, monitoring the stock market, and watching the latest TV shows. You have to keep "improving" in the narrow economic sense of increasing your value, and you are directed to do this by autonomous memes that you can neither monitor nor feel, working inside your brain like clockwork.

These memes direct you unconsciously to desire things for their status enhancement value, for their instrumental value in getting you "ahead" -- whatever that means. Modern economic life (and all life is now economic) directs you to economize and maximize, but never "wastes time" on such trifles as determining a purpose. Why argue about ends, about purposes, when you can maximize, economize, and shuffle along to your grave in the best possible way? The memes don't answer when you call out in the lonely suburban void, the chill night of crisp air and shoveled driveways: "To what end?"

Textualism and Originalism

2006-01-03T15:51:00.000-05:00

When I started this particular blog, I thought I would be posting about crappy pop music I hear in my car, the idiosyncratic forms of stupidity one encounters at a Top Ten Law School, and why I like shooting shotguns but could never vote Republican. But no, in my wannabe-erudite and contentious fashion, I end up posting about political theory and constitutional law. So be it!

Originalism and Textualism: Problems
My last post outlined a fictitious conversation between an Originalist and an interlocutor trying to understand it. I wrote it in as charitable a fashion I could, giving the benefit of the doubt to the Originalist and not pushing on some things I could have. In part, this is because Originalism seems to me a strong theory of interpreting Fundamental Law in a constitutional democracy, and I think everyone ought to take it seriously even if some reject it ultimately.

But Originalism, in any form that a judge would actually employ, must contain Textualism, a much more narrow theory of interpretation. Textualism starts with the premise that where a legal clause is sufficiently clear in its meaning and application, you simply follow what it says and stop arguing about what the person who wrote it "really" meant by it. This is not to say that marks on a paper are magical or always have a fixed meaning - far from it! But marks on a piece of paper, in the cultural context within which they are made, usually indicate a linguistic meaning that to a vast number of people in that cultural context. That meaning is usually clear to most people.

Problems with this approach arise when the textual clause in issue is vague, or did not address the application of the clause that is being challenged. To make this more concrete, consider a common civil rights complaint. An arrested individual sues the local police officers who arrested her, contending that they did not provide her with "due process of law" under the Fifth and Fourteenth Amendments of the Constitution (put aside the procedural issues such a suit raises, for a moment). The arrested individual says that the warrant was based on a vague description of her person which was incorrect and led to her wrongful arrest whereas another individual should have been arrested in her stead. The police contend that the warrant and the description it was based upon were of such a degree a particularity such that they were acting reasonably in arresting her. The court would obviously look at a lot of facts for such a case, but in the end the relevant facts and how they affect the court's decision must be guided by a construction or interpretation of the words "due process of law." What do those words entail in this case?

We could go back and forth and apply different constructions of what "due process" entails, but the point is that Textualism in its most basic form has to go deeper for it to help us out in this example. This is where Originalism comes in. Originalism tells us that where the plain meaning of the text is uncertain, vague, or vague in a particular application, we should consult what it meant to an ordinary person when it was enacted as law. That's Original Meaning.

For the Due Process Clause we mentioned above in our example, we look to the historic meaning of the concept "due process of law." That term actually has a specific and historical English common law definition that we need not lay out here. Suffice to say that the Fifth Amendment, as written in 1791, meant that traditional English meaning and no other.

Step Back
Step back a moment: why does Originalism need Textualism, and when is all this going to become relevant to a criticism of Originalism? Originalism needs Textualism because without it no one would take it seriously. In fact, I think the basic premises of textualism are accepted by most constitutional theorists -- what they disagree upon is how to interpret vague or unclear language and the application of that language. Originalism answers that problem by insisting that clauses of the Constitution be given the historical and common understanding of their import, period. Things are not so cut-and-dry, but that's the basic premise.

Why is all this a problem? I'm not sure it is. But what is a problem is that conservative jurists call themselves "Originalists" even when they are not. It is a problem to even be 95% "originalist" and 5% "living constitution" or "Dworkin's moral values" for your theorizing. Why? Because then it becomes clear that you are picking and choosing your system of interpretation based on political/moral preferences, to reach certain moral results. If you are declaring yourself to be a staunch "originalist," the only reason that declaration has value in a judicial confirmation hearing is because it supposedly signals that you will follow some objective legal methodology in interpretation, with no care for the results of that method.

But most so-called "originalists" abandon some of their premises from time to time, or use well-worn tricks to get around results in cases that, although flowing from pure Originalism, actually end up with a socially liberal policy result. This is why I highlighted my example with the Eleventh Amendment. One liberal cause that conservatives typically oppose (though with muffled language) is the ability for minorities to sue civil rights violators in federal court for their malfeasance. One barrier to these lawsuits is the Eleventh Amendment, which bars suits against states and state offices. A long line of U.S. Supreme Court precedents (Edelman v. Jordan, Will v. Michigan Dept., etc.) has established that lawsuits againsts states and state offices for damages are simply barred in federal court. And good luck trying to sue the government of Virginia in a Virginia state court! Immunity at the state level is the rule, as well.

But how did this result? Look at the language of the Eleventh Amendment:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

Interesting, so X, a citizen of Virginia, cannot sue the government of New York even though New York state police officers used excessive force on X during an unlawful search and seizure. But why, according to the Eleventh Amendment, can Y, a citizen of Virginia, not sue the government of Virginia for damages resulting from a Virginia state patrol officer's faulty arrest of Y?

It turns out that judges who call themselves "originalists" almost uniformly believe that the Eleventh Amendment bars any suit against a state by any citizen, no matter if it is his own state, in federal courts. These conservative judges (and they are conservatives, almost uniformly), believe that what the Eleventh Amendment was "really" trying to do was bridge the concept of "sovereign immunity" for states into the Constitution. Note that nowhere in the text of the Amendment do we see the words "sovereign immunity" or any reference to such a concept. Even if these so-called "originalists" were correct that the intent of the drafters of the Eleventh Amendment was to import "sovereign immunity" into the Constitution for the states, who cares? Drafter's intent doesn't matter to Originalists anymore - they abandoned it. So they have to prove that the public, at the time of the Eleventh Amendment, would have read the above clause to mean that Y cannot sue Virginia.

Would the public at that time have believed that, upon reading those words? I doubt it. But the key insight in this situation is that we don't need to make that Originalist inquiry in the first place -- the text is sufficiently clear on the matter! If you read the text in isolation, you could solve the issue of Y v. Virginia in a flash -- Y gets to sue Virginia in federal court so long as Y can prove Virginia citizenship. Textualism compels the natural and obvious reading of the clause so long as there is nothing vague about it, and in the Eleventh Amendment's case, in its application to Y v. Virginia, there is nothing vague. Y should get to sue.

But Y doesn't, and that's the tragedy of those conservative jurists who put their naked political preferences above a commitment to Originalism proper, which recognizes the primacy of Textualism whenever the text is clear. I said before that Originalism has been reduced to a rhetoric device for Republican politicians, and I think I am correct. A true Originalist accepts even socially liberal conclusions as long as the correct method is used. But true Originalists do not populate the "short list" of Republican nominees for federal benches.

Originalism, Political Theory, and the Framers of the Constitution

2005-12-29T10:08:00.000-05:00

What a grandiose title! So arrogant, in a way, to purport to be explaining these things, since I know so little. But something must be said since my prior thoughts were so incompletely expressed.

Republican Bobby raised good points in his comments to my "Originalism" post, and I feel like they have helped clarify my thinking. Two points: What Scalia says about Originalism is not cannon, but it's pretty close to what most Originalists believe nowadays, and it does combine textualism as a first commitment with original meaning inquiries as a back-up (when the text is sufficiently unclear).

Methods of Interpreting Written Constitutions
As I have explored constitutional theory and the history of the American Republic, I have been guided by a few sources in this area:

A Matter of Interpretation by Justice Antonin Scalia

The Creation of the American Republic: 1776 - 1787 by Gordon S. Wood

Democracy and Distrust by John Hart Ely

Freedom's Law by Ronald Dworkin

These books, along with several law review articles have convinced me of a few things. First, Originalism is initially very attractive, because it offers a rather simple and elegant solution to the problem of indeterminacy in the U.S. Constitution. Originalism says, basically, that in interpreting a written document that purports to be the Fundamental Law of a state, one should rely exclusively on the original meaning of its clauses qua isolated clauses. See Ely, Democracy and Distrust. What this also implies is that an interpreter should not pay attention to the history of drafting if the text and its meaning in a given situation are plain (otherwise that would be Original Intent, not Original Meaning), that one should not view the Constitution as a holistic structure and attempt to reason deductively from one takes to be its themes (This is John Hart Ely's philosophy), and finally, one should not view vague or indeterminate clauses as abstract appeals to a higher moral authority such as Natural Law or "discoverable" and objective morality (Ronald Dworkin). Where the text is clear in meaning, nothing should trump the text. Where the text and its application are indeterminate, we go to original meaning.

Given what Originalism is, and what it is not, I think I have to explain why I think both it and its alternatives are incorrect, which is a monumental task that may be divided into multiple posts. For now, let us simply take Originalism and its claims at face value.

Say someone tells you that Originalism is the only valid way to interpret the U.S. Constitution. They have to say this because Originalism is a jealous mistress, and so strict that it does not tolerate deviations into one of the above-mentioned methodologies. A conversation:

Socrates: Why Originalism?
Originalist: It follows from the Constitution's nature as both written text and Fundamental law. First, because it is written, unlike the English Constitution (specifically unlike it, we should note!), the document must have meant to fix certain legal structures and guarantees over time, and not be subject to the varied interpretations of modernity. Second, because it purports to be the Fundamental Law of the land, it intends to fix one conception of natural law and natural rights into written form, so as to exclude from its scope the moral philosophical debates that would make for ever-changing and indeterminate legal interpretation. This is obvious when you think about it, because moral philosophers, political philosophers, and natural law theorists vehemently disagree on what pre-social rights and obligations people have to one another. A written Constitution fixes one possible meaning, and if the people find it to be wrong, they can change it by a supramajoritarian process, which also serves to retard the effects of social change in law, and forces people to make democratic commitments as to fundamental values. Judges should not disturb any of these things, because their job, as much as they can, is to determine the meaning of these isolated clauses and not to redefine the practical effect of their original meaning based on "evolving standards of decency" and other vagueries.
Socrates: That makes sense, given what I know of early American history and the role of judges then and now. It also points out that often liberal theorists do not have a "method" per se and use vague notions like "evolving standards" and "Fundamental Rights" to cover their tracks. It is pretty clear that they don't even know what they are doing when they say these things, and it is very contentious to treat judging in such a flippant manner.
Originalist: Right, I mostly agree with those statements. Why do you still seem unconvinced?
Socrates: Aren't we forgetting some key facts about the role of judges and the view of the judicial branch in 1787? Gordon S. Wood, a conservative historian, wrote both in his Creation of the American Republic as well as in his critique of Justice Scalia in A Matter of Interpretation that between 1776 and 1787 there was substantial change to the public view of the judiciary. Namely, the radical state sovereignty of the Articles of Confederation led a lot of people (perhaps a majority) to fear the raw idea of Legislative Supremacy, which leds a despot be replaced by a despotic body politic, but doesn't change the problem of despotism in government. Part of the Constitution's solution was to give the federal legislature lots of power but to allow checks and balances on its law-making activities by the Executive and Judicial branches. The checks took the form of the veto power, and judicial review, respectfully. Judicial Review is viewed in light of the 1776-1787 history as not simply an outgrowth of fear of despotic legislatures but a strong political check on that problem. Justices of the court of last resort, under this view, are meant to be political actors where the Constitution is vague, and are forced to engage in law-making.
Originalist: I'm not sure I agree with your history, because there was still a lot of fear of judicial power in 1787, and not only in isolated corners. You do not solve the problem of despotism simply by giving the judiciary the last say on the Constitution. In any case, might we infer from the judiciary's relative weaknesses and the documentation of the Framing that the judiciary was not meant to be such a powerful institution? Take as examples its status as the "least dangerous branch" in Hamilton's Federalist Paper #87 as well as its staus as last-discussed in the Constitution (Article III) and its lack of the power of the purse and sword. The judiciary can hardly enforce its rulings against a hostile congress and executive, and therefore it was never meant to be deciding purely political issues, and should resign itself to discovering constitutional law from the text and original meaning (in that order).
Socrates: Fair points. What happens when original meaning is not clear, is vague, or did not address a particular issue or application for a case?
Originalist: That is tough, but mostly original meaning provides guidance for applying the Constitution. If it does not, it is likely that the issues raised delve into political or moral matters not addressed by the Constitution, and should be left to the legislature.

Is this a fair picture of what modern Originalists think and how they would respond to these common objections?

Age, Respect, Wisdom

2005-12-25T14:42:00.000-05:00

In thinking about how human beings age and learn, I am struck not by how much individuals gain from age, but how little. I frequently (solely?) encounter people far older than me who, perhaps despite my expectations, know so little. It is not that their generalized knowledge is lower, their specialized knowledge in fields known to me lower -- I would expect both of these for various reasons when encountering the average person double my age. It is more the case that they simply seem to have learned nothing by virtue of their longer time on this earth. This shocks me.

Why would it shock me? Our culture has a very strong and pervasive identification between age and wisdom. If you seriously dispute this, you are not from any human culture that I know of or you are being a contrarian. You can see it in television, movies, or being around relatives (in my case) for holidays. The old are supposed to have "been there, done that" and thereby attained some level of wisdom that makes their decisions and conclusions about life worth more than the young.

To a certain degree, these prejudices on our part are justified. Up until a point - perhaps adulthood - humans are prone to many cognitive and decisional errors. Perhaps many people never progress beyond such a point where they are so error-prone. Nevertheless, we might say that until adulthood humans are "lower" in their possession of wisdom than those older than they.

But what of distinctions within the class of adults? Why does a thirty-year-old outclass a twenty-five-year-old in wisdom, presumptively? Of course there will be border cases of extravagant wisdom in youth and extravagant foolishness in old age, but our culture expects that on average, the 25-year-old is simply less wise than the 30-year-old.

I don't actually think this heuristic is useful or accurate. It seems to me that the more I age, and the more "wisdom" I supposedly accumulate, the more I realize that people become less wise as they age, in a whole variety of ways. Psychologically, the heuristic bias in favor of the old having wisdom is probably crafted by the old themselves -- they have an undue effect on the creation and influence of culture, after all.

A point for more exploration later.

Things I learned today

2005-12-24T01:41:00.000-05:00

"Fled" is a bad movie, punctuated by Lawrence Fishburne saying "We have to fled!" every half an hour.

The behavior of suburban adults who have children and are between the ages of 35 and 55 needs to be studied by an anthropologist with a sense of humor. And no -- David Brooks doesn't count. I said anthropologist, meaning the scientific method, meaning rigor. David Brooks probably does his "research" by driving fifty miles outside New York City and pontificating at a gas station. That's not what I'm talking about.

People shopping in affluent suburban strip mall regions are atomistic individuals, and only fleetingly aware that they are surrounded by people such as themselves. They act accordingly, pursuing their narrow goals and blissfully unaware of their social surrounds. Actually, not blissfully.

King Kong was a good remake of a classic, and Peter Jackson is talented in more genres than remakes of fantasy novels. I was more entertained by King Kong than by the Lord of the Rings trilogy -- but that's setting a low bar. I was actually bored by Lord of the Rings, both the books and the well-executed movies.

Sometimes reading about futuristic science and technology depresses me. I realize that all of these cool devices will not be around until fifty years after I am dead and gone. Psychologically, I realize this is pointless and more than a little humorous. I cannot just enjoy the abundance of new technology and science around me right now -- instead, I am angry because we don't have tricorders yet!

Why Originalism is a Political Screen

2005-12-23T22:25:00.000-05:00

Originalism, the mix of political and legal philsophy holds that the U.S. Constitution should be interpreted where it is vague through a particular method. That method involves ascertaining the "original" (historical) meaning of the words used in the Constitution. The policy goal here is that the people ratifying the Constitution and its amendments thought the words they were ratifying something particular and discoverable through such research, and that this meaning was meant to be fixed permanently by those ratifiers.

There are, needless to say, an enormous number of problems with such a theory. Most law students, after their first-year, could cite the following:

Originalism requires a pre-constitutional theory in order for it to mandate itself. That is, there is no authority in the Constitution itself that says that it must be read and interpreted by Originalism only.

Originalism will not always provide answers, which means that historians can disagree over what the people of 1787 and 1791 thought they were ratifying. This merely creates wholes in which politics can be pushed -- defeating the political purposes of Originalism.

Originalism does not account for what judges and justices have seen as their responsibility and method over our nation's history. Read John Marshall's opinions. How "originalist" was Marshall?

Sadly, the list goes on. Yet the President and his hardcore right-wing supporters insist on appointing purportedly "Originalist" judges to the bench, judges in the mold of Justices Scalia and Thomas. Needless to say, those two justices are not the most faithful originalists. For an example, try this exercise.
Exercise: Disproving Thomas and Scalia's Originalism

Find the U.S. Constitution

Read the Eleventh Amendment, carefully

Write down what you think it means. Specifically, answer the question: "Does the Eleventh Amendment of the U.S. Constitution mean that a citizen of Virginia can sue the government of Virginia?"

Read any opinion by Justices Rehnquist, O'Connor, Kennedy, Scalia, Thomas, or any conservative jurist, that involves the Eleventh Amendment.

Actually, I will save you the fourth step. Conservative jurists who call themselves "Originalists" consistently and abundantly rule that the Eleventh Amendment means that a citizen cannot sue his own state. They say that the text of the amendment is important, but that it is trumped by the existence, outside the Constitution, of a preexisting "sovereign immunity" that all states possess and cannot be taken away. Sound a bit like finding the "right to privacy" in the Due Process Clause?

My own view
Actually, I rather like Originalism. I read Justice Scalia's book, A Matter of Principle, and I thought he was witty and an excellent writer as well. And I like the theory, in theory. The problem is that the theory of Originalism forces the American people to go through the exhausting amendment process every time our nation's fundamental laws need to be adjusted in small ways to compensate for the rapid changes that have occurred in our world, especially those technological, societal, and economic in nature (think of the differences in scientific knowledge between 1787 and 2005!).

The theory of Originalism also is, sadly, a political screen for religious and economic conservatives, behind which they can push reactionary and regressive policies upon the nation. Activists, indeed.

If you need proof, simply read this statement from the Intelligent Design proponents from the Washington Post:

"This decision is a poster child for a half-century secularist reign of terror that's coming to a rapid end with Justice Roberts and soon-to-be Justice Alito," said Richard Land, who is president of the Southern Baptist Convention's Ethics & Religious Liberty Commission and is a political ally of White House adviser Karl Rove. "This was an extremely injudicious judge who went way, way beyond his boundaries -- if he had any eyes on advancing up the judicial ladder, he just sawed off the bottom rung."

This guy cracks me up for many reasons. First, Judge Jones, the judge who rendered the recent decision striking down Intelligent Design as a curriculum mandate, is a George W. Bush-appointed federal judge. Second, this guy is basically saying that even as the President tells us Justices Roberts and Alito will not "legislate from the bench" or be "activists," they actually will do both those things. The difference from Judge Jones? Roberts and Alito will be religious conservative activists, not moderate, pro-science activists.

What does the word "activist" connote as a pejorative term, anymore? Nothing.

More on Evolution

2005-12-23T22:11:00.000-05:00

A few quick notes on the debate over the teaching of evolution by natural selection of fitness-conferring attributes over long periods of time, otherwise known as Darwinian Evolution.

An excellent discussion of Karl Popper's beliefs regarding evolutionary theory as a scientific theory. It is hilarious that "Intelligent Design" advocates (read: creationists) would attempt to quote Karl Popper, a philosopher of science and reason who opposed pseudoscience and detested the authority of mystery religions. I like Popper's explanation, which is difficult for us to grasp because of our present time-centric perspective, of Darwinian Evolution's contribution to our understanding of biology. His example is the evolution of bacteria resistant to penicillin. How else to explain organisms changing in response to human activities, over time, and after the introduction of medicinal penicillin? You could come up with some, but evolutionary theory does a damn good job.

Reason online has a little libertarian-focused explanation of the fallacies of the "Intelligent Design" movement. I link to this because libertarians often ally themselves with religious authoritarians (conservatives) in American politics. They do this to accomplish their economic policies, but sometimes they subvert their ideals in their alliances. At least some of them have remembered that the state should not be subsidizing free advertisements for religious theories of the world anymore than the state already subsidizes those things: the tax-exempt status of churches.

What else to say, after this? Some people oppose evolutionary theory in its present form because they do not understand it; some oppose it because it seems to make God more complicated than the Gospel leads us to believe. Both are silly problems to have with an explanation of natural theory. Others dislike evolutionary theory because they are religious politicos, anti-scientific rationalists, or identify evolutionary theory with social liberalism. All of those sources of opposition are likewise childish, in my mind. I could explain further - but why? If anyone who reads this actually holds an anti-evolutionary belief due to any of my enumerated sources, I would relish the opportunity to explain any particular one.

Fundamentalism in Federal Court

2005-12-21T11:38:00.000-05:00

Just today (or was it yesterday?) a District Judge in Pennsylvania ruled against the Intelligent Design Movement in Dover, Penn. In the opinion, the judge evaluates the IDM arguments and concludes that they are basically the same ones "creationists" and "creation scientists" made in the middle of the 20th Century, and that they are religiously-based. Since compelling education in "intelligent design" necessarily means education in a religious perspective on the development of species in the biological world, it constitutes an unconstitutional "endorsement" forbidden by the Establishment Clause of the First Amendment. The IDM groups are apoplectic at the notion that they might be "religious" in nature. The judge dispensed with their arguments in his opinion as follows:

Although proponents of the IDM occasionally suggest that the designer could be a space alien or a time-traveling cell biologist, no serious alternative to God as the designer has been proposed by members of the IDM, including Defendants' expert witnesses. (20:102-03 (Behe)). In fact, an explicit concession that the intelligent designer works outside the laws of nature and science and a direct reference to religion is Pandas' rhetorical statement, “what kind of intelligent agent was it [the designer]” and answer: “On its own science cannot answer this question. It must leave it to religion and philosophy.” (P-11 at 7; 9:13-14 (Haught)).

Nicely put, because of course these people don't require schoolchildren to learn of The Flying Spaghetti Monster. The website just linked proves an important point beyond being funny: If IDM arguments were actually valid, they would prove too much. We could not teach biological science in the schools because we would have to teach every single "challenging" view to every single scientific theory, as long as they met the extremely low hurdle of IDM. The Church of the Flying Spaghetti Monster, sadly, does meet that standard.

Political Interlude

2005-12-18T16:19:00.000-05:00

CNN reports today about the apparent controversy over people saying "Happy Holidays" and not "Merry Christmas." This isn't a controversy, this isn't a national debate, a national conversation, or a national anything. This is a bunch of right wing politicians and activists complaining, as usual. If they don't get the Ten Commandments in a courthouse, they complain and send out the lawyers. If they don't get to call a Celebratory Tree a "Christmas Tree," they complain, write op-eds, and send out the lawyers.

Aren't these the same exact people who complain about complainers? Aren't these the same exact people who complain about our overly litigious culture?

I'm not going to call them "hypocrites" here; I'm just going to call them idiots.

Blinded by the Light

2005-12-18T15:46:00.000-05:00

Anyone who knows 1970s music probably has heard the song "Blinded by the Light" by either Bruce Springsteen (original) or Manfred Mann (better-known cover). I like this song a lot for some reason, but the lyrics have never made much sense to me, and I know I'm not alone. So here, for your benefit, is the first chorus and verse of the song, which leads into the second chorus:

Blinded by the light
revved up like a deuce
Another runner in the night
Blinded by the light
revved up like a deuce
Another runner in the night
Blinded by the light
revved up like a deuce
Another runner in the night

Madman drummers bummers
Indians in the summer
with a teenage diplomat

In the dumps with the mumps
as the adolescent pumps
his way in to his hat

With a boulder on my shoulder
feeling kinda' older
I tripped the merry go round
With this very unpleasing
sneezing and wheezing
the calliope crashed to the ground

The calliope crashed to the ground...

and she was blinded by the light,
revved up like a deuce, another runner in the night...

Props to 007 Lyrics for the lyrics that I couldn't make out, although I had to format things to make more sense.

The lyrics do not get more comprehensible as the song continues but it does have a poetic dissonance to it. What I mean is that it is not simply abstract imagery put together for the purpose of being abstract. That is annoying; in art or in music, to my taste. But I think Bruce Springsteen actually had some kind of Bob Dylan-esque story to tell with the song. That doesn't mean I have any clue what that story is supposed to be.

Several websites try to offer meaning for the song, or at least to clarify the often-misheard lyrics. This site purports to offer the "straight dope" on the song, and its lyrics, though the author doesn't even try to explain meanings.

Still, Manfred Mann one-ups Bruce when they end the song by doing a round, with one dude singing verses while the main vocalist sings the chorus in a slightly different fashion.

Saturday Afternoon in a Coffee Shop

2005-12-17T14:41:00.000-05:00

Charlottesville, Virginia, is a funny place, sandwiched between the blue ridge mountains and the rolling plains and rivers near Richmond, and just two hours south of the outer reaches of the D.C. metro area. There are lots of wannabe authors and artists here, perhaps hinging on the presence of Dave Matthews and John Grisham, among other less notable figures who reside in the area.

One of the coffee shops I frequent in the city plays host to gatherings ranging from Christian groups to paranormal groups. It's a great place, called CVille Coffee, and run by a sole proprietor who really couldn't be a nicer gentleman. I thoroughly recommend it if you're ever bored in Charlottesville (and who among those who reside here isn't, at some point?).

That said, there are old people who come through the coffee house. These aren't the friendly elderly folks you sometimes encounter as neighbors or in craft stores. These are the old people who buy a 20 oz. mug of coffee and sit and stare at people. That's all they do! They just stare at you. You walk in the door, unprepossessing, dressed conservatively, and they just stare at you, as if they are waiting for you to explode or something.

Of course, my philosophy is that this is utterly rude. In polite society, no matter what age you are and what level of respect you think you are entitled to, you look quickly at people who enter a room and then look away -- you get back to your conversation, your book, whatever. But you do not stare at someone for more than five seconds unless you either hate them or love them. What is the old quotation from an anthropologist? If two human beings stare at each other for longer than five seconds they are either going to fight or make love. I think that's it.

Anyway, the subset of old people who stare too much and too often at others have no sense of courtesy. I'd stare back at them but often that would involve more torture for me than I ought to endure. It might be said that they know this, internally; they must know they have the advantage of ugliness, both in appearance and manners.

Tu Quoque and Common Logical Fallacies

2005-12-16T00:46:00.000-05:00

Logical Fallacies are a favorite subject for my late-night efforts to evade doing real work that I should be doing. For one thing, it is fascinating how many people have heard of these fallacies and still keep on employing them in arguments. Not that humans are always or even often rational, of course.

Some good web collections of logical fallacies can be found here on Wikipedia and here at the Fallacy Files website. One of my favorite is Tu Quoque, which is Latin for "you, too" or "you, also" (or however you want to translate it). As the name implies, this fallacy is when someone, say person B, responds to person A's argument that person B does or believes something wrong or inconsistent (for example) by saying, "yes that is true, but you [person A] do that as well!" This isn't really an argument defending person B, but interestingly, very few humans pick up on that. Most people in person A's position immediately go on the defensive, which is exactly what person B wanted them to do. The example used on the Fallacy Files site is where Osama Bin Laden responds to a CNN interview question (in 1997) about whether he is funding terrorism in Afghanistan by saying that the U.S. engages in terrorism too. Well that obviously doesn't answer the question (indeed, in this case it is an admission!) and it is an irrelevant response to the argument/question.

Another neat list on Wikipedia, somewhat related to Logical Fallacies, is their long list of Cognitive Biases. These biases prevent people from being perfect "rational actors" as many economists seem to assume they are...

A related logical fallacy to Tu Quoque that I encounter a lot is the "illusion of double standards" argument. This is where someone argues that the other person is being hypocritical by applying one rule or standard to themselves and another to other people. The tricky part of this fallacy is that sometimes the allegation is true -- there do exist, unsurprisingly, examples of pepople acting hypocritically or inconsistently applying rules when it is convenient, et cetera. However, this is not always the case, and jumping to that conclusion is a sign of poor reasoning in some situations. The key thing to remember is that double standards only exist where the rule to be applied, as properly stated, actually applies to both situations. Let me put it this way -- if you accuse someone of hypocritically violating a rule that they criticize other people for violating, you must first ensure that the rule actually applies to the alleged hypocrite, because sometimes it won't. Maybe other rules apply to them. This is not as disingenuous a rationale as it at first seems, and many people also have a knee-jerk response to this explanation!

Here is a simple example that illustrates the problems of telling when the rule is being applied consistently or not. If a vegan argues with a typical American omnivore that the latter's dietary choices are hypocritical, what is he claiming? The vegan is arguing that the omnivore treats animals and humans differently, and perhaps he throws in the fact, "and you own a dog too! Would you eat your own dog? How are cows and pigs any different?!?" The omnivore has a simple explanation, however. To the omnivore, there are hierarchies of moral worth, and some animals do not have moral status whereby a standard that says, "do not eat creatures that have high moral value similar to humans" (an expansion on the old human taboo against cannibalism) would apply to them. Apparently pigs and cows are out of luck. Now, the vegan can object ferociously to what he would view as the illogical line-drawing between animals of comparable intelligence, et cetera - or however he puts it. But that is an entirely separate debate! All I am saying in this case is that you cannot argue that the omnivore is pursuing a "double standard" by owning a dog and also eating beef and pork.

Wow, that got over-long...

Pharrell Williams and Why I Like American Pop

2005-12-16T00:33:00.000-05:00

I've just recently discovered how important Pharrell Williams was to my musical taste. Virtually all the pop music I've enjoyed in the past five years can be traced to the Neptunes (Pharrell's production crew) and often, to Pharrell's voice on the singles. I never used to listen to a lot of pop, but as I got more and more into vocal timbres and enjoying different harmonies when they were sung by the human voice, I've definitely broadened my musical tastes beyond my previous, limited range of classic rock, blues, bebop, and limited electronic music. But this is an unnecessary aside - what I mostly like about Pharrell is his awesome falsetto, which you can hear on Snoop Dogg's "Beautiful" or Pharrell's first personal single (where he wasn't guesting for a change) "Frontin'."

Speaking of which, "Frontin'" was also covered by Jamie Cullum, an artist who I'd really love to see in concert. He's essentially a modern jazz singer-songwriter, but far less pretentious than most jazz musicians I've seen (it can be nauseating how full of themselves many jazz folks are... especially the connoisseurs). In any case, he also has a great voice, though it shines in the lower registers and has a rolling, soothing quality to it that makes his songs really unique.

So then I'm thinking: Of all the electronic/mixing groups I enjoy listening to, I like Zero 7 the most. Kid Loco is pretty neat too but too obviously obscure, whereas I always find Zero 7 to be meditative, and I really like their frequent vocal contributor, whose name I either forget or never knew. In any case, I was thinking to myself today what it would sound like for Zero 7 and Pharrell Williams to get together and write something. I think it could turn out awesome, but they come from totally different angles. Zero 7 is focused on creating a soundscape, whereas Pharrell and the Neptunes are all about minimalist electronic pop. What I like about both of them is that they create excellent sonic backgrounds on which their unique vocal artists can play, highlighting the vocal textures and dynamics that distinguish them. I never thought Justin Timberlake was anything special, but I had to admit that "Senorita" is a catchy song, and you can hear Pharrell's production techniques at work in that tune, as well as his voice providing back-up (if I'm not mistaken).

Anyway, go over to http://www.radioblogclub.com/ and do a search for these tunes and you'll hear what I mean. Just don't click on Britney Spears' "Boys." Yes, Pharrell produced/wrote it and has a bridge part in the song, but it is so wretched that I can barely contain my urge to spit upon it -- and the video is worse!

That's all for this first entry. Veteran anonymous bloggers with no audience need waste no time on introductory remarks. :)